{ "id": 4191124, "name": "STATE OF NEW MEXICO, Plaintiff-Appellee, v. JOE T. GARCIA, Defendant-Appellant", "name_abbreviation": "State v. Garcia", "decision_date": "2012-12-06", "docket_number": "No. 33,895; Docket No. 31,470", "first_page": "170", "last_page": "183", "citations": [ { "type": "official", "cite": "2013-NMCA-005" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "94 N.M. 792", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573143 ], "weight": 8, "year": 1980, "pin_cites": [ { "page": "792" }, { "page": "1307" }, { "page": "793" }, { "page": "1308" }, { "page": "794" }, { "page": "1309" } ], "opinion_index": 0, "case_paths": [ "/nm/94/0792-01" ] }, { "cite": "2011-NMSC-024", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4249959 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 48" }, { "page": "\u00b6\u00b6 56-59" } ], "opinion_index": 0, "case_paths": [ "/nm/150/0232-01" ] }, { "cite": "284 U.S. 299", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5719289 ], "year": 1932, "opinion_index": 0, "case_paths": [ "/us/284/0299-01" ] }, { "cite": "1999-NMSC-017", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 257701 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 26" }, { "page": "\u00b6 26" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0240-01" ] }, { "cite": "116 N.M. 793", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727643 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "796", "parenthetical": "holding that the Court of Appeals is bound by Supreme Court precedent" }, { "page": "1178", "parenthetical": "holding that the Court of Appeals is bound by Supreme Court precedent" } ], "opinion_index": 0, "case_paths": [ "/nm/116/0793-01" ] }, { "cite": "103 N.M. 778", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711408 ], "weight": 4, "year": 1986, "pin_cites": [ { "page": "780", "parenthetical": "\"This Court has held the [CDM] statute constitutional despite the vagueness of its description of the proscribed acts and omissions.\"" }, { "page": "584", "parenthetical": "\"This Court has held the [CDM] statute constitutional despite the vagueness of its description of the proscribed acts and omissions.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/103/0778-01" ] }, { "cite": "1999-NMCA-152", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 106482 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 24" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0345-01" ] }, { "cite": "120 N.M. 274", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1558970 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "276" }, { "page": "207" } ], "opinion_index": 0, "case_paths": [ "/nm/120/0274-01" ] }, { "cite": "111 N.M. 473", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715085 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "478", "parenthetical": "upholding the disorderly conduct statute from an overbreadth challenge because the statute only punished \"fighting words\" and therefore \"avoid[ed] any punishment of speech that is protected [by] the [First Amendment]\" (internal quotation marks omitted)" }, { "page": "1068", "parenthetical": "upholding the disorderly conduct statute from an overbreadth challenge because the statute only punished \"fighting words\" and therefore \"avoid[ed] any punishment of speech that is protected [by] the [First Amendment]\" (internal quotation marks omitted)" } ], "opinion_index": 0, "case_paths": [ "/nm/111/0473-01" ] }, { "cite": "553 U.S. 285", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3674164 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "292-93", "parenthetical": "internal quotation marks and citations omitted" }, { "page": "293" } ], "opinion_index": 0, "case_paths": [ "/us/553/0285-01" ] }, { "cite": "405 U.S. 518", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11722895 ], "year": 1972, "pin_cites": [ { "page": "520-21" } ], "opinion_index": 0, "case_paths": [ "/us/405/0518-01" ] }, { "cite": "2001 WI 47", "category": "reporters:neutral", "reporter": "WI", "case_ids": [ 9473006 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/wis-2d/243/0204-01" ] }, { "cite": "53 N.M. 106", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580741 ], "weight": 6, "year": 1949, "pin_cites": [ { "page": "111" }, { "page": "967" }, { "page": "109" }, { "page": "966" }, { "page": "111" }, { "page": "967", "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/53/0106-01" ] }, { "cite": "458 U.S. 747", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 636693 ], "year": 1982, "pin_cites": [ { "page": "756-57", "parenthetical": "\"It is evident beyond the need for elaboration that a [s]tate's interest in safeguarding the physical and psychological well-being of a minor is compelling.\" (internal quotation marks and citation omitted)" } ], "opinion_index": 0, "case_paths": [ "/us/458/0747-01" ] }, { "cite": "116 N.M. 528", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727725 ], "weight": 4, "year": 1993, "pin_cites": [ { "page": "532" }, { "page": "1176" }, { "page": "532-33" }, { "page": "1176-77" } ], "opinion_index": 0, "case_paths": [ "/nm/116/0528-01" ] }, { "cite": "131 S. Ct. 2729", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 4334708, 12450503 ], "year": 2011, "pin_cites": [ { "page": "2733-35, 2738" } ], "opinion_index": 0, "case_paths": [ "/us/564/0786-01", "/l-ed-2d/180/0708-01" ] }, { "cite": "114 N.M. 537", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 731665 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "547" }, { "page": "849" } ], "opinion_index": 0, "case_paths": [ "/nm/114/0537-01" ] }, { "cite": "532 U.S. 514", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9301565 ], "year": 2001, "pin_cites": [ { "page": "526", "parenthetical": "\"[GJovernment regulation of expressive activity is content neutral so long as it is justified without reference to the content of the regulated speech.\" (emphasis, internal quotation marks, and citation omitted)" } ], "opinion_index": 0, "case_paths": [ "/us/532/0514-01" ] }, { "cite": "1999-NMCA-081", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 257774 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 2" }, { "page": "\u00b6 17" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0504-01" ] }, { "cite": "520 U.S. 180", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11651420 ], "weight": 5, "year": 1997, "pin_cites": [ { "page": "186", "parenthetical": "internal quotation marks and citation omitted" }, { "page": "186", "parenthetical": "internal quotation marks and citation omitted" }, { "page": "186" }, { "page": "186", "parenthetical": "internal quotation marks and citation omitted" }, { "page": "217" } ], "opinion_index": 0, "case_paths": [ "/us/520/0180-01" ] }, { "cite": "491 U.S. 781", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6219515 ], "year": 1989, "pin_cites": [ { "page": "791" } ], "opinion_index": 0, "case_paths": [ "/us/491/0781-01" ] }, { "cite": "529 U.S. 803", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9509184 ], "year": 2000, "pin_cites": [ { "page": "811-12" } ], "opinion_index": 0, "case_paths": [ "/us/529/0803-01" ] }, { "cite": "118 N.M. 431", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563450 ], "weight": 6, "year": 1994, "pin_cites": [ { "page": "433", "parenthetical": "applying intermediate scrutiny to a challenge to a criminal statute that did not \"restrict}] free expression based on the content of what is expressed\"" }, { "page": "24", "parenthetical": "applying intermediate scrutiny to a challenge to a criminal statute that did not \"restrict}] free expression based on the content of what is expressed\"" }, { "page": "433" }, { "page": "24", "parenthetical": "applying intermediate scrutiny to a challenge to a criminal statute that did not \"restrict[] free expression based on the content of what is expressed\"" }, { "page": "432" }, { "page": "23" } ], "opinion_index": 0, "case_paths": [ "/nm/118/0431-01" ] }, { "cite": "2009-NMCA-124", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4246182 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 6" }, { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm/147/0313-01" ] }, { "cite": "274 P.3d 791", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2012-NMCA-035", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4187492 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 13, 22" }, { "page": "\u00b6 5" }, { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm-app/1/0482-01" ] }, { "cite": "2011-NMCA-098", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4251086 ], "weight": 5, "pin_cites": [ { "page": "\u00b64" }, { "page": "\u00b6 8" }, { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/150/0576-01" ] }, { "cite": "2009-NMSC-001", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4241923 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/145/0402-01" ] }, { "cite": "281 P.3d 1256", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2012-NMCA-068", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4189583 ], "pin_cites": [ { "page": "\u00b6\u00b6 13-14" } ], "opinion_index": 0, "case_paths": [ "/nm-app/2/0158-01" ] }, { "cite": "2006-NMCA-017", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 2543052 ], "weight": 4, "pin_cites": [ { "page": "\u00b6\u00b6 26-30" }, { "page": "\u00b6\u00b6 26-30" } ], "opinion_index": 0, "case_paths": [ "/nm/139/0072-01" ] }, { "cite": "2010-NMCA-027", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4245178 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 13" } ], "opinion_index": 0, "case_paths": [ "/nm/147/0761-01" ] }, { "cite": "117 N.M. 452", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1552789 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "456" }, { "page": "874" } ], "opinion_index": 0, "case_paths": [ "/nm/117/0452-01" ] }, { "cite": "1997-NMSC-059", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 18555 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 14" }, { "page": "\u00b6 14" } ], "opinion_index": 0, "case_paths": [ "/nm/124/0333-01" ] }, { "cite": "2008-NMSC-053", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4001913 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 10" }, { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/144/0821-01" ] }, { "cite": "295 P.3d 600", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 1 }, { "cite": "2012-NMCERT-007", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 1 }, { "cite": "284 P.3d 1090", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 1 }, { "cite": "2012-NMCA-075", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4190327 ], "weight": 2, "pin_cites": [ { "page": "\u00b6 29" }, { "page": "\u00b6 29" } ], "opinion_index": 1, "case_paths": [ "/nm-app/2/0219-01" ] }, { "cite": "535 U.S. 425", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 353617 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "434, 455", "parenthetical": "stating that content-based regulation of speech must pass strict scrutiny" }, { "page": "455", "parenthetical": "\"A restriction based on content survives only on a showing of necessity to serve a legitimate and compelling governmental interest, combined with least restrictive narrow tailoring to serve it}.]\"" } ], "opinion_index": 1, "case_paths": [ "/us/535/0425-01" ] }, { "cite": "130 S. Ct. 1577", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 3582194, 12448252 ], "year": 2010, "pin_cites": [ { "page": "1584, 1586", "parenthetical": "same" } ], "opinion_index": 1, "case_paths": [ "/us/559/0460-01", "/l-ed-2d/176/0435-01" ] }, { "cite": "599 U.S. 460", "category": "reporters:federal", "reporter": "U.S.", "year": 2010, "pin_cites": [ { "parenthetical": "same" } ], "opinion_index": 1 }, { "cite": "2012 UT 34", "category": "reporters:neutral", "reporter": "UT", "case_ids": [ 6982227 ], "weight": 2, "pin_cites": [ { "page": "\u00b6 32" }, { "page": "\u00b6 35" } ], "opinion_index": 1, "case_paths": [ "/p3d/284/0605-01" ] }, { "cite": "458 U.S. 747", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 636693 ], "year": 1982, "pin_cites": [ { "page": "756-57" } ], "opinion_index": 1, "case_paths": [ "/us/458/0747-01" ] }, { "cite": "116 N.M. 528", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727725 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "531" }, { "page": "1175" }, { "page": "1175", "parenthetical": "describing the community standard as \"[t]he common sense of the community, as well as the sense of decency, the propriety, and the morality which most people entertain\" (internal quotation marks and citation omitted)" } ], "opinion_index": 1, "case_paths": [ "/nm/116/0528-01" ] }, { "cite": "131 S. Ct. 2729", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 4334708, 12450503 ], "weight": 4, "year": 2011, "pin_cites": [ { "page": "2736", "parenthetical": "\"No doubt a [s]tate possesses legitimate power to protect children from harm[.]\"" }, { "page": "2735", "parenthetical": "internal quotation marks and citation omitted" }, { "page": "2733", "parenthetical": "setting out limited areas of unprotected speech" }, { "page": "2738" } ], "opinion_index": 1, "case_paths": [ "/us/564/0786-01", "/l-ed-2d/180/0708-01" ] }, { "cite": "114 N.M. 537", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 731665 ], "weight": 4, "year": 1992, "pin_cites": [ { "page": "546-47" }, { "page": "848-49", "parenthetical": "discussing jury instructions allowing the jury to convict the defendant for speech unacceptable or beyond decency under community \"tolerance\" standard and indicating that the issue is a jury issue" }, { "page": "546" }, { "page": "848", "parenthetical": "\"We believe [Article II, Section 17 of] our constitution requires that, although the community might not find the materials 'acceptable,' it must find them 'intolerable' before they may be deemed as an 'abuse' of the right to freely speak, write, and publish sentiments on all subjects.\"" } ], "opinion_index": 1, "case_paths": [ "/nm/114/0537-01" ] }, { "cite": "532 U.S. 514", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9301565 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "524" }, { "page": "526", "parenthetical": "omission in original" } ], "opinion_index": 1, "case_paths": [ "/us/532/0514-01" ] }, { "cite": "1999-NMCA-081", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 257774 ], "weight": 2, "pin_cites": [ { "page": "\u00b6 17" }, { "page": "\u00b6 17" } ], "opinion_index": 1, "case_paths": [ "/nm/127/0504-01" ] }, { "cite": "2011-NMCA-098", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4251086 ], "weight": 2, "pin_cites": [ { "page": "\u00b6 12" }, { "page": "\u00b6 14" } ], "opinion_index": 1, "case_paths": [ "/nm/150/0576-01" ] } ], "analysis": { "cardinality": 1536, "char_count": 44374, "ocr_confidence": 0.831, "pagerank": { "raw": 5.1358340203146617e-08, "percentile": 0.32432971960913554 }, "sha256": "a4c28dfe399f80c888aa97b55106bac109283bbc5887c2794a06cda690441131", "simhash": "1:704a3d172c07012c", "word_count": 7045 }, "last_updated": "2023-07-14T14:46:09.531131+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "JAMES J. WECHSLER, Judge", "J. MILES HANISEE, Judge", "JONATHAN B. SUTIN, Judge (specially concurring)", "JONATHAN B. SUTIN, Judge" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Appellee, v. JOE T. GARCIA, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWECHSLER, Judge.\n{1} Defendant Joe Garcia appeals his conviction of contributing to the delinquency of a minor (CDM), a fourth degree felony, contrary to NMSA 1978, Section 30-6-3 (1990). We hold that (1) the State presented sufficient evidence to support Defendant\u2019s conviction; (2) the CDM statute did not violate Defendant\u2019s right to free expression under the federal and state constitutions; (3) the CDM statute is not unconstitutionally overbroad under the First Amendment to the United States Constitution; (4) as a matter of due process, the CDM statute is not unconstitutionally vague; and (5) under the general/specific rule, the State was not required to charge Defendant for violating the statute prohibiting providing sexually oriented materials harmful to a minor (the sexual oriented materials statute) instead of CDM. Accordingly, we affirm.\nBACKGROUND\n{2} Defendant\u2019s conviction arose out of a handwritten, sexually explicit letter that Defendant\u2019s biological daughter, Y.G., found in her underwear drawer. Y.G. lived with her mother, Defendant, and her younger brother. Defendant had recently moved back into the house after a two-to-three year separation from Y. G. \u2019 s mother. Although they resided in the same house, Y.G. and Defendant did not speak to each other because she lost trust in Defendant and felt abandoned that he previously left the household.\n{3} On June 10, Y.G. left the house with her mother and two brothers, leaving Defendant alone in the house. Later that same day, Y.G.\u2019s mother and Defendant left the house and Y.G. stayed home. Y.G. started looking for her cellular phone. When she looked in her underwear drawer, she found a handwritten letter containing a story entitled \u201cI Just a Fantasy Story,\u201d which contained five pages describing various sexual acts between the writer, a male, and the reader, a female. Y.G. testified that she immediately recognized the handwriting in the letter to be that of Defendant\u2019s. She pretended that nothing had happened, returned to the living room with her cousins for that evening without saying anything, then spent the next day avoiding Defendant. She did not tell her mother until the next evening.\n{4} Based on the letter, the State charged D efendant with criminal solicitation to commit incest or, in the alternative, CDM. After a trial, the jury convicted Defendant of CDM. On appeal, Defendant argues that (1) the State presented insufficient evidence to support his conviction; (2) the CDM statute as applied in this case is a content-based regulation that violates Defendant\u2019s right to freedom of speech; (3) the CDM statute is unconstitutionally overbroad; (4) the CDM statute is unconstitutionally vague; and (5) under a general/specific analysis, the State was required to charge Defendant under the sexually oriented materials statute.\nSUFFICIENCY OF THE EVIDENCE\n{5} In order for the jury to convict Defendant of CDM, the State had to prove that\n1. ... [Djefendant wrote a letter to his biological daughter . . . soliciting sexual acts, which was placed in [Y.G.\u2019s] underwear drawer;\n2. This encouraged [Y.G.] to commit the offense of [i]ncest, or conduct herself in [a] manner injurious to the morals or the health, or the welfare of [Y.G.];\n3. [Y.G.] was under the age of 18[.]\nDefendant argues that there was insufficient evidence to support Defendant\u2019s conviction because the State submitted no evidence that it was Defendant who placed the letter in Y.G.\u2019s drawer.\n{6} \u201cThe test for sufficiency of the evidence is whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to a conviction.\u201d State v. Sena, 2008-NMSC-053, \u00b6 10, 144 N.M. 821, 192 P.3d 1198 (internal quotation marks and citation omitted). \u201c[Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion^]\u201d State v. Baca, 1997-NMSC-059, \u00b6 14, 124 N.M. 333, 950 P.2d 776 (internal quotation marks and citation omitted). We view the evidence in the light most favorable to, and indulge all inferences in favor of, the verdict. Sena, 2008-NMSC-053, \u00b6 10; State v. Sanders, 117 N.M. 452, 456, 872 P.2d 870, 874 (1994). If there is substantial evidence supporting the verdict, we do not reweigh the evidence or substitute our judgment for that of the factfinder. State v. Fuentes, 2010-NMCA-027, \u00b6 13, 147 N.M. 761, 228 P.3d 1181.\n{7} Although the State did not present any direct evidence that it was Defendant who placed the letter in Y.G.\u2019s drawer, the State presented sufficient evidence for a reasonable factfinder to conclude that Defendant was the author of the letter, which leads to a reasonable conclusion that Defendant placed the letter in Y.G.\u2019s drawer. Y.G. testified that she immediately recognized the handwriting in the letter to be that of Defendant\u2019s. The State also presented testimony from an expert handwriting analyst, who testified that the handwriting in the letter was Defendant\u2019s after comparing the letter to a sample of Defendant\u2019s writing. Further, the content of the letter provides clues that Defendant was its author. The letter begins \u201c[s]ometimes when I\u2019m thinking of you and wishing I was with you. I start imagining everything is all right [sic]. Like me walking into your room and your [sic] just their [sic] reading a book and we start talking.\u201d A reasonable inference from this opening is that the writer lives in the same house as Y.G. and does not have a good relationship with her. Combined with Y.G\u2019s testimony that she did not speak to Defendant, this evidence leads to an inference that Defendant wrote the letter. Further, the jury heard testimony that the police executed a search warrant on June 12, 2010, and in conducting a search of the home, found an envelope in Y.G.\u2019s parents\u2019 bedroom with the writing \u201cI Just a fantasy\u201d on it.\n{8} The evidence that Defendant authored the letter, when combined with the evidence that Defendant was the only one of two males who lived in the house and was alone in the house on the day Y.G. found the letter, is sufficient circumstantial evidence for a reasonable factfinder to conclude that Defendant placed the letter in Y.G.\u2019s drawer. See Baca, 1997-NMSC-059, \u00b6 14. Sufficient evidence therefore supported Defendant\u2019s conviction for CDM.\nCONSTITUTIONAL ISSUES\nIssue Raised at Oral Argument\n{9} At oral argument, in framing his constitutional arguments, Defendant argued that the jury instruction stating the elements of CDM required that the State had to prove that Defendant \u201cwrote a letter . . ., which was placed in [Y.G.\u2019s] underwear drawer.\u201d Defendant contends that, because of the use of the passive voice in the jury instruction, the jury could have found that Defendant wrote the letter, but did not place it in Y.G.\u2019s drawer, and still convict Defendant of CDM. However, Defendant did not object to the instruction in the district court and therefore did not preserve this issue. See State v. Nichols, 2006-NMCA-017, \u00b6\u00b6 26-30, 139 N.M. 72, 128 P.3d 500 (rejecting the defendant\u2019s argument that the broad time frame covered injury instructions denied him due process because the defendant did not object to the instructions in order to preserve the issue). Defendant also waived this argument by failing to raise it in his brief in chief. See State v. Triggs, 2012-NMCA-068, \u00b6\u00b6 13-14, 281 P.3d 1256 (stating the general rule that this Court will not address arguments not raised in the brief in chief). Defendant argues that the issue need not be preserved because it implicates his constitutional rights. However, \u201c[e]ven constitutional rights may be lost if not preserved below.\u201d State v. Zamarripa, 2009-NMSC-001-33, 145 N.M. 402, 199 P.3d 846; see also Nichols, 2006-NMCA-017, \u00b6\u00b6 26-30 (declining to address the defendant\u2019s unpreserved constitutional arguments). We therefore proceed to address Defendant\u2019s constitutional arguments under the premise that the jury was required to find, and found, that Defendant not only wrote the letter, but also placed it in Y.G\u2019s drawer as argued below and in the briefing before this Court.\nStandard of Review\n{10} Defendant makes three arguments that his conviction under the CDM statute violated his rights under the federal and state constitutions. He asserts that the CDM statute (1) is a content-based regulation that violates his rights to freedom of expression under the First Amendment of the United States Constitution and Article II, Section 17 of the New Mexico Constitution, (2) is unconstitutionally overbroad in violation of the First Amendment, and (3) is unconstitutionally vague and therefore violates Defendant\u2019s due process rights.\n{11} We review each of Defendant\u2019s constitutional arguments under a de novo standard of review. See State v. Ebert, 2011-NMCA-098, \u00b64, 150 N.M. 576, 263 P.3d 918 (reviewing the defendant\u2019s arguments that his conviction violated his rights under the First Amendment and that the statute was unconstitutionally vague under a de novo standard of review); see also Vill. of Ruidoso v. Warner, 2012-NMCA-035, \u00b6\u00b6 13, 22, 274 P.3d 791 (addressing an argument that an ordinance is overbroad under a de novo standard of review). \u201cWe presume that the statute is constitutional, and it is the defendant\u2019s burden to rebut this presumption}.]\u201d State v. Jacquez, 2009-NMCA-124, \u00b6 6, 147 N.M. 313, 222 P.3d 685 (citation omitted).\nFreedom of Expression\n{12} We first address Defendant\u2019s argument that the CDM statute is a content-based regulation that deprives him of his right to free expression under the federal and state constitutions. Defendant does not challenge the CDM statute facially, but instead argues that, as applied to his conviction arising out of writing and delivering the letter to Y.G., the CDM statute punishes protected expressive conduct. See Vill. of Ruidoso, 2012-NMCA-035, \u00b6 5 (\u201cIn a facial challenge ... , we consider only the text . . . itself, not its application; whereas, in an as-applied challenge, we consider the facts of the case to determine whether application . . . deprived the challenger of a protected right.\u201d).\n{13} We must initially determine whether the CDM statute is content based in order to determine the constitutional framework under which to analyze Defendant\u2019s challenge. See Ebert, 2011-NMCA-098, \u00b6 8 (applying strict scrutiny to a content-based prohibition); State v. Ongley, 118 N.M. 431, 433, 882 P.2d 22, 24 (Ct. App. 1994) (applying intermediate scrutiny to a challenge to a criminal statute that did not \u201crestrict}] free expression based on the content of what is expressed\u201d). Citing United States v. Playboy Entm\u2019t Grp., Inc., 529 U.S. 803, 811-12 (2000), Defendant argues that the CDM statute is content based because \u201cthe regulation of the prohibited conduct \u2018focuses only on the content of the speech and the direct impact that speech has on its listeners\u2019 [and] the [United States Supreme] Court has indicated that such an action \u2018is the essence of content-based regulation.\u2019\u201d \u201cThe principal inquiry in determining content neutrality ... is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.\u201d Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).\n{14} The CDM statute provides that\n[contributing to the delinquency of a minor consists of any person committing any act or omitting the performance of any duty, which act or omission causes or tends to cause or encourage the delinquency of any person under the age of eighteen years.\nSection 30-6-3. This statute makes no reference to the content of any speech or written expression and does not \u201cdistinguish favored speech from disfavored speech on the basis of the ideas or views expressed}.]\u201d Turner Broad. Sys., Inc. v. Fed. Commc\u2019ns Comm\u2019n, 520 U.S. 180, 186 (1997) (internal quotation marks and citation omitted). There is no indication that it was adopted because of any disagreement with a particular message that a speaker conveys. Although, the CDM statute has been applied to various circumstances, some involving speech and some involving other conduct, the key to the statute is that it proscribes conduct only when the action \u201ctends to cause or encourage the delinquency of\u2019a minor. Section 30-6-3. In cases involving speech, the statute applies regardless of whether the communication is sexual in nature, as in this case, or whether it encourages minors to engage in other delinquent activities, for example, \u201cburglarizing homes and selling the property for cash and drugs.\u201d State v. Barr, 1999-NMCA-081, \u00b6 2, 127 N.M. 504, 984 P.2d 185.\n{15} In this case, Defendant was not convicted solely based on the contents of the letter. The jury was instructed that it could convict Defendant only if the letter \u201cencouraged [Y.G.] to commit the offense of [ijncest, or conduct herself in [a] manner injurious to the morals or the health, or the welfare of [Y.G.]\u201d Therefore, the conviction did not arise out of the letter itself, but instead arose out of the action of delivering the letter to Y.G. and the effect of the letter, which was to encourage Y.G. to commit incest or act in a way injurious to her health or welfare. Because the CDM statute\u2019s main function is to regulate any conduct that causes or tends to cause or encourage the delinquency of a minor regardless of the specific subject matter, the CDM statute is content neutral, and strict scrutiny does not apply. See Bartnicki v. Vopper, 532 U.S. 514, 526 (2001) (\u201c[GJovernment regulation of expressive activity is content neutral so long as it is justified without reference to the content of the regulated speech.\u201d (emphasis, internal quotation marks, and citation omitted)); cf. Ebert, 2011-NMCA-098, \u00b6 8 (assuming without deciding that a statute prescribing \u201ccommunications based on their sexual content\u201d is a content-based prohibition).\n{16} Having determined that the CDM statute is content neutral, we apply intermediate scrutiny to the statute in determining whether it infringes on Defendant\u2019s freedom of expression. See Ongley, 118 N.M. at 433, 882 P.2d at 24 (applying intermediate scrutiny to a challenge to a criminal statute that did not \u201crestrict[] free expression based on the content of what is expressed\u201d). \u201c[U]nder the intermediate level of scrutiny applicable to content-neutral regulations, [a law will be] sustained if it [is] shown to further an important or substantial governmental interest unrelated to the suppression of free speech, provided the incidental restrictions [do] not burden substantially more speech than is necessary to further those interests.\u201d Turner Broad. Sys., Inc., 520 U.S. at 186 (internal quotation marks and citation omitted). Although the New Mexico Constitution provides greater protection with respect to content-based restrictions, see City of Farmington v. Fawcett, 114 N.M. 537, 547, 843 P.2d 839, 849 (Ct. App. 1992), \u201cthe protection of the federal and state constitutions are the same, at least with respect to content-neutral restrictions.\u201d Ongley, 118 N.M. at 432, 882 P.2d at 23.\n{17} We first turn to whether the CDM statute furthers an important or substantial governmental interest unrelated to the suppression of free speech. See Turner Broad. Sys., Inc., 520 U.S. at 186. Defendant, citing Brown v. Entm\u2019t Merchs. Assoc., ___ U.S. __, 131 S. Ct. 2729, 2733-35, 2738 (2011), argues that \u201cdisgust is not a valid basis for restricting expression\u201d and that \u201cspeech directed at children\u201d is not a category of First Amendment protection. Flowever, the State\u2019s interest in enacting the CDM statute is not to criminalize disgust or to prevent children from hearing a particular message. Generally, \u201c[t]he purpose of the CDM statute is to protect children from harmful adult conduct.\u201d Barr, 1999-NMCA-081, \u00b6 17 (internal quotation marks and citation omitted). This State\u2019s interest of protecting the well-being of minors is designed to protect children from \u201cdelinquency [based on w]hatever the community sense of decency and morality determines delinquency to be.\u201d State v. Trevino, 116 N.M. 528, 532, 865 P.2d 1172, 1176 (1993). This interest \u201cis addressed more to the mental and behavioral aspects of children than to their physical well-being.\u201d Id. at 532-33, 865 P.2d at 1176-77. The United States Supreme Court has held that protecting the mental well-being of children is not only a substantial governmental interest, it is compelling and satisfies strict scrutiny. See New York v. Ferber, 458 U.S. 747, 756-57 (1982) (\u201cIt is evident beyond the need for elaboration that a [s]tate\u2019s interest in safeguarding the physical and psychological well-being of a minor is compelling.\u201d (internal quotation marks and citation omitted)). We too consider the State\u2019s interest of protecting children from delinquency to be a substantial and important governmental interest, unrelated to the suppression of free speech.\n{18} We next turn to whether CDM statute\u2019s \u201cincidental restrictions [on speech] burden substantially more speech than is necessary to further those interests.\u201d Turner Broad. Sys., Inc., 520 U.S. at 186 (internal quotation marks and citation omitted). Under the intermediate level of scrutiny, the restriction need not be a less-restrictive means of achieving the legitimate purpose. See id. at 217 (stating that the \u201cless-restrictive-alternative analysis . . . has never been a part of the inquiry into the validity of content-neutral regulations on speech\u201d and that \u201cour cases establish that content-neutral regulations are not invalid simply because there is some imaginable alternative that might be less burdensome on speech\u201d (internal quotation marks and citations omitted)). Defendant argues that the \u201cdefinition of delinquency used by the [CDM] statute is sweeping\u201d and \u201ccriminalizes vast amounts of protected speech because there is no definition of what speech is prohibited.\u201d\n{19} However, the CDM statute is limited to circumstances that do not substantially burden more speech than necessary to further the interest of protecting children from delinquency. First, in order to convict the defendant of CDM, the defendant\u2019s actions must be directed toward a child. Second, the CDM has a causation requirement. In order for a defendant to be guilty of CDM, the speech must have \u201ccause[d] or tendfed] to cause or encourage\u201d the minor to delinquency, meaning (1) to commit a crime, (2) to refuse to obey the reasonable and lawful commands or directions of a person who has lawful authority of the child, or (3) to conduct himself or herself in a manner injurious to his or her morals, health, or welfare. Section 30-6-3; UJI 14-601 NMRA. Although the definition of delinquency is broad, our Supreme Court has stated that \u201c[t]he ways and means by which the venal mind may corrupt and debauch the youth of our land, both male and female, are so multitudinous that to compel a complete enumeration in any statute designed for protection of the young before giving it validity would be to confess the inability of modern society to cope with the problem of juvenile delinquency.\u201d State v. McKinley, 53 N.M. 106, 111, 202 P.2d 964, 967 (1949). The CDM statute does not burden more speech than necessary in order to fulfill its broad purpose of protecting children from delinquency.\n{20} We note Defendant\u2019s reliance on In re Douglas D., 2001 WI 47, 243 Wis. 2d 204, 626 N.W.2d 725. In Douglas D., the Wisconsin Supreme Court held that the First Amendment prohibited prosecution under the state\u2019s disorderly conduct statute of a high school student who wrote a story for a creative writing assignment in which the student beheaded the teacher. Id. \u00b6\u00b6 6, 9, 11, 39. However, the court held that the \u201cFirst Amendment.does not inherently bar the [sjtate from applying [the disorderly conduct statute] to unprotected speech, even if the unprotected speech is purely written speech.\u201d Id. \u00b6\u00b6 21, 25. The court held that the state can prosecute a defendant under the disorderly conduct statute when the speech at issue is considered \u201cabusive\u201d conduct, which includes \u201ctrue threats\u201d under the statute. Id. \u00b6\u00b6 25, 32. The court held that, in the context of a creative writing assignment and the hyperbole and jest contained in the defendant\u2019s story, the defendant could not be prosecuted because it was not a \u201ctrue threat\u201d for purposes of the statute and was therefore protected under the First Amendment. Id. \u00b6 39.\n{21} This case is distinguishable from Douglas D. In this case, Defendant\u2019s conviction did not arise solely from the content of Defendant\u2019s letter, but instead was premised on the effect of encouraging or tending to cause or encourage Y.G.\u2019s delinquency. Defendant does not challenge the jury\u2019s finding in this regard. This case is therefore similar to a situation described in Douglas D., in which a defendant\u2019s conduct does constitute a true threat and therefore is outside the realm of First Amendment protection. See id. \u00b6\u00b6 32-33. Defendant\u2019s conviction for CDM did not violate his First Amendment or New Mexico Constitution freedom of expression rights.\nOverbreadth\n{22} Defendant next argues that the CDM statute is unconstitutionally overbroad under the First Amendment. Particularly, Defendant argues that \u201cNew Mexico [c]ourts have construed \u2018delinquency\u2019 broadly, to include acts injurious to a minor\u2019s morals, healthy or welfare.\u201d Therefore, Defendant contends that the CDM statute is overbroad because \u201cit criminalizes vast amounts of protected speech because there is no definition of what speech is prohibited.\u201d\n{23} A defendant may attack an overly broad statute \u201cwith no requirement that the [defendant] demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity[.]\u201d Gooding v. Wilson, 405 U.S. 518, 520-21 (1972). Under the \u201cFirst Amendment overbreadth doctrine, a statute is facially invalid if it prohibits a substantial amount of protected speech\u201d beyond that needed to achieve the statute\u2019s proper purpose. Vill. of Ruidoso, 2012-NMCA-035, \u00b6 6 (internal quotation marks and citation omitted). The United States Supreme Court has described the overbreadth doctrine as follows:\nThe doctrine seeks to strike a balance between competing social costs. On the one hand, the threat of enforcement of an overbroad law deters people from engaging in constitutionally protected speech, inhibiting the free exchange of ideas. On the other hand, invalidating a law that in some of its applications is p erfectly constitutional \u2014 p articularly a law directed at conduct so antisocial that it has been made criminal \u2014 has obvious harmful effects. In order to maintain an appropriate balance, we have vigorously enforced the requirement that a statute\u2019s overbreadth be substantial, not only in an absolute sense, but also relative to the statute\u2019s plainly legitimate sweep. Invalidation for overbreadth is strong medicine that is not to be casually employed.\nUnited States v. Williams, 553 U.S. 285, 292-93 (2008) (internal quotation marks and citations omitted).\n{24} Defendant fails to satisfy his burden of showing that the CDM statute punishes a substantial amount of protected speech. Although Defendant argues that the definition of delinquency is \u201csweeping\u201d and the CDM statute therefore covers \u201cvast amounts of protected speech,\u201d Defendant fails to provide a single example of any type of protected speech that could lead to a conviction under the CDM statute. As we discussed in the context of Defendant\u2019s freedom of expression argument, the CDM statute is limited to circumstances that do not substantially burden protected speech because a conviction requires that a defendant\u2019s conduct encourage or tend to encourage a minor to (1) commit a crime, (2) refuse to obey the reasonable and lawful commands or directions of a person who has lawful authority of the child, or (3) conduct himself or herself in a manner injurious to his or her morals, health, or welfare. Section 30-6-3; UJI 14-601. Under these circumstances, any incidental infringement on protected speech is not substantial and subject to the \u201cstrong medicine\u201d of invalidation. The CDM statute is not overbroad. Williams, 553 U.S. at 293; see State v. James M., 111 N.M. 473, 478, 806 P.2d 1063, 1068 (Ct. App. 1990) (upholding the disorderly conduct statute from an overbreadth challenge because the statute only punished \u201cfighting words\u201d and therefore \u201cavoid[ed] any punishment of speech that is protected [by] the [First Amendment]\u201d (internal quotation marks omitted)).\nVoid for Vagueness\n{25} Defendant also argues that the CDM statute is unconstitutionally vague and therefore violates his rights of due process under the law. Defendant particularly relies upon the broad definition of delinquency in our case law and the reliance on juries to determine what acts constitute CDM in each particular case. We analyze a claim of vagueness according to the particular facts of each case, State v. Luckie, 120 N.M. 274, 276, 901 P.2d 205, 207 (Ct. App. 1995), and a defendant may not succeed on a vagueness claim if the statute clearly applies to the defendant\u2019s conduct. See State v. Laguna, 1999-NMCA-152, \u00b6 24, 128 N.M. 345, 992 P.2d 896. \u201cA statute is void for vagueness if: (1) it fails to provide persons of ordinary intelligence using ordinary common sense a fair opportunity to determine whether their conduct is prohibited; or (2) it fails to create minimum guidelines for the reasonable police officer, prosecutor, judge, or jury charged with enforcement of the statute, and thereby encourages subjective and ad hoc application.\u201d Jacquez, 2009-NMCA-124, \u00b6 6.\n{26} Our Supreme Court has previously addressed Defendant\u2019s argument that the CDM statute is void-for-vagueness in McKinley. In McKinley, our Supreme Court upheld the CDM statute from a void for vagueness challenge in which the defendant argued that the statute \u201cis so vague, indefinite},] and uncertain as to be incapable of interpretation and enforcement.\u201d 53 N.M at 109, 202 P.2d at 966. Our Supreme Court upheld the statute, reasoning that \u201c[t]he common sense of the community, as well as the sense of decency, the propriety, and morality which most people entertain, is sufficient to apply the statute to each particular case, and point out what particular conduct is rendered criminal by it.\u201d Id. at 111, 202 P.2d at 967 (internal quotation marks and citation omitted). As set out earlier in this Opinion, the Court noted that \u201c[t]he ways and means by which the venal mind may corrupt and debauch the youth of our land, both male and female, are so multitudinous that to compel a complete enumeration in any statute designed for protection of the young before giving it validity would be to confess the inability of modern society to cope with the problem of juvenile delinquency.\u201d Id.; see also State v. Pitts, 103 N.M. 778, 780, 714 P.2d 582, 584 (1986) (\u201cThis Court has held the [CDM] statute constitutional despite the vagueness of its description of the proscribed acts and omissions.\u201d). McKinley and Pitts control our disposition of the issue; and the CDM statute is not void for vagueness. See State v. Wilson, 116 N.M. 793, 796, 867 P.2d 1175, 1178 (1994) (holding that the Court of Appeals is bound by Supreme Court precedent).\nGENERAL/SPECIFIC\n{27} Defendant lastly argues that under a general/specific analysis, the State was required to charge Defendant under the sexually oriented materials statute, NMSA 1978, \u00a7 30-37-2 (1973), which criminalizes providing harmful sexually oriented materials to a minor. The general/specific statute rule, \u201cto the extent that it requires prosecution under one statute instead of another, is connected with the principle of double jeopardy as it relates to multiple punishment for unitary conduct.\u201d State v. Cleve, 1999-NMSC-017-22, 127 N.M. 240, 980 P.2d 23. The general/specific rule states that if one statute deals with a subject in general and comprehensive terms, and another statute addresses part of the same subject matter in a more specific manner, the latter controls. Id. \u00b6 17. Our Supreme Court has stated that, in order for the rule to apply, \u201cCourts should [apply the test enunciated in Blockburger v. United States, 284 U.S. 299 (1932), and] compare the elements of the two relevant crimes. If the elements of the two crimes are the same, the general/specific statute rule applies, and the prosecution must charge the defendant under the special law absent a clear expression of legislative intent to the contrary.\u201d Cleve, 1999-NMSC-017, \u00b6 26. Examining whether the elements of the statutes differ requires statutory interpretation, an issue of law that we review de novo. Id. \u00b6 7.\n{28} The sexually oriented materials statute, Section 30-37-2, provides that\nIt is unlawful for a person to knowingly sell, deliver, distribute, display for sale or provide to a minor, or knowingly to possess with intent to sell, deliver, distribute, display for sale or provide to a minor:\nA. any picture, photograph, drawing, sculpture, motion picture film or similar visual representation or image of a person or portion of the human body, or any replica, article[,] or device having the appearance of either male or female genitals which depicts nudity, sexual conduct, sexual excitement[,] or sado-masochistic abuse and which is harmful to minors; or\nB. any book, pamphlet, magazine, printed matter however produced or sound recording which contains any matter enumerated in Subsection A of this section or explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct or sado-masochistic abuse and which, taken as a whole, is harmful to minors.\n{29} Defendant concedes that the statutory elements of the CDM statute and the sexually oriented materials statute are not the same, but argues that the New Mexico Supreme Court expressly adopted a modified Blockburger analysis for claims involving statutes that are vague and unspecific. See State v. Gutierrez, 2011-NMSC-024, \u00b6 48, 150 N.M. 232, 258 P.3d 1024. Indeed, in Gutierrez, our Supreme Court determined that courts should look to the legal theory advanced by the state when applying the Blockburger analysis. Gutierrez, 2011-NMSC-024, \u00b6\u00b6 56-59.\n{30} Defendant argues that in this case \u201cthe legal theory is that by writing a sexually explicit letter which was placed in [Y.G.]\u2019s underwear drawer, [Defendant] encouraged her to conduct herself in [a] manner injurious to the morals or the health, or the welfare of [Y.G.]\u201d (third alteration in original). Defendant contends that this legal theory \u201cduplicates the elements of the [s]exually [o]riented [m]aterials . . . statute[,]\u201d which contains three elements: (1) knowingly providing to a minor (2) explicit and detailed narrative accounts of sexual excitement (3) which, taken as a whole, is harmful to minors. Section 30-37-2(B). However, even accepting Defendant\u2019s argument regarding the theory of the case, the CDM statute and the sexually oriented materials statute contain different elements. The CDM statute requires that the material encourage delinquency, in this case, either encouraging or tending to encourage Y.G. to commit incest or conduct herself in a manner injurious to her morals, health, or welfare. The sexually oriented materials statute only requires the knowing delivery of harmful materials to a minor.\n{31} Further, in State v. Cuevas, 94 N.M. 792, 792, 617 P.2d 1307, 1307 (1980), overruled on other grounds by Pitts, 103 N.M. 778, 714 P.2d 582, our Supreme Court examined the general/specific rule in a case involving an adult defendant who attended a party with minors and demonstrated how to drink tequila with a lemon. The jury convicted the defendant of CDM and, on appeal, this Court held that the general/specific rule required that the defendant be charged and convicted of violations of the liquor control act, which criminalizes \u201caid[ing] or assisting] a minor to buy, procure},] or be served with alcoholic liquor.\u201d Cuevas, 94 N.M. at 793, 617 P.2d at 1308. Our Supreme Court reversed, holding that \u201c[CDM] is a crime separate and distinct from any underlying violation of the law. In fact, this Court has said that the underlying act does not have to be illegal if the element of contributing to the delinquency of a minor is still present.\u201d Id. at 794, 617 P.2d at 1309. The Court noted that \u201c[a]n adult can, almost always, be prosecuted under the specific statute dealing with liquor, drugs, sex, etc.[, but the] legislative purpose [of the CDM statute] is different from that behind our drug and liquor laws.\u201d Id.\n{32} This case is similar and therefore governed by Cuevas. Although Defendant\u2019s conduct leading to the CDM charge could also have led to a conviction under the sexually oriented materials statute, CDM is separate and distinct from any underlying violation of the law. See id. The State had discretion to determine charges that should be brought against Defendant based upon the evidence available to support them. See Cleve, 1999-NMSC-017, \u00b6 26 (\u201cThis Court has long acknowledged the [state\u2019s] broad discretion to conduct criminal prosecutions, including its power to select the charges to be brought in a particular case.\u201d (internal quotation marks and citation omitted)). Defendant\u2019s conviction for CDM did not violate the general/specific rule, and the State was not required to charge Defendant under the sexually oriented materials statute.\nCONCLUSION\n{33} We hold that (1) the State presented sufficient evidence to support Defendant\u2019s conviction; (2) the CDM statute did not violate Defendant\u2019s right to free expression under the federal and state constitutions; (3) the CDM statute is not unconstitutionally overbroad under the First Amendment to the United States Constitution; (4) as a matter of due process, the CDM statute is not unconstitutionally vague; and (5) under the general/specific rule, the State was not required to charge Defendant for violating the statute prohibiting providing sexually oriented materials harmful to a minor instead of CDM. Accordingly, we affirm.\n{34} IT IS SO ORDERED.\nJAMES J. WECHSLER, Judge\nI CONCUR:\nJ. MILES HANISEE, Judge\nJONATHAN B. SUTIN, Judge (specially concurring)", "type": "majority", "author": "WECHSLER, Judge." }, { "text": "SUTIN, Judge\n(specially concurring).\n{35} I concur in the overbreadth, vagueness, and general/specific dispositions and do not write separately to discuss aspects of those dispositions. I concur, as well, in the as-applied disposition, but write separately only to express my view that the CDM statute, as applied here, should be analyzed under strict scrutiny and not intermediate scrutiny. I do so not only because I see the CDM statute as content-based under the circumstances here. I also do so because I see the CDM statute as a statute that can all too easily give rise to prosecutorial overreach and to outlier jury verdicts. See State v. Butt, 2012 UT 34, \u00b6 32, __P.3d__(\u201cHowever, the fact that the jury must measure patent offensiveness against contemporary community standards does not mean . . . that juror discretion in this area is to go unchecked.\u201d (omission in original) (alteration, internal quotation marks, and citation omitted).\n{36} Initially, I do not see a purpose in attempting to distinguish or separate the writing at issue, its delivery, and its effect, in analyzing the constitutional issues. Here, the charge against Defendant arose out of the writing and delivery of a letter encouraging criminal or immoral sexual activity, conduct no different than a face-to-face verbal encouragement consisting of the same content. Effect is built into the statutory element. Thus, I see no need to attempt any distinction or separation in justifying Defendant\u2019s conviction under the CDM statute.\n{37} The problematic language of the CDM statute with which I have concern here is that which criminalizes acts that tend to encourage or encourage a minor to act in a way that is injurious to his or her health, morals, or welfare. Under New Mexico case law, children are to be protected in instances in which another\u2019s speech or act can result in a child engaging in conduct not tolerated by a community under the community\u2019s sense of decency, propriety, or morality, and the fact finder is to be the determiner of whether the conduct is or is not to be tolerated under a community standard. See Trevino, 116 N.M. at 531, 865 P.2d at 1175 (stating that, under the CDM statute, \u201c[w]e always have relied on juries to determine what acts constitute contributing to delinquency in a particular case\u201d including \u201c[t]he common sense of the community, as well as the sense of decency, the propriety, and the morality which most people entertain\u201d (internal quotation marks and citation omitted)); Barr, 1999-NMCA-081, \u00b6 17 (\u201cThe purpose of the CDM statute is to protect children from harmful adult conduct.\u201d (internal quotation marks and citation omitted)); Fawcett, 114 N.M. at 546-47, 843 P.2d at 848-49 (discussing jury instructions allowing the jury to convict the defendant for speech unacceptable or beyond decency under community \u201ctolerance\u201d standard and indicating that the issue is a jury issue). By my special concurrence here, I hope to at least lay the foundation for the careful and strict scrutiny I believe should be required in cases such as this.\n{38} The constitutional question under discussion \u201cconcerns the validity of the statute[] as applied to the specific facts of [this] case[].\u201d Bartnicki, 532 U.S. at 524. The issue is whether the CDM statute is content-neutral or content-based.\nDeciding whether a particular regulation is contentbased or content neutral is not always a simple task . . . . As a general rule, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content based. In determining whether a regulation is content based or content neutral, we look to the purpose behind the regulation; typically, government regulation of expressive activity is content neutral so long as it is justified without reference to the content of the regulated speech.\nId. at 526 (omission in original) (alteration, emphasis, internal quotation marks, and citations omitted). \u201c[T]he mere assertion of a content-neutral purpose [is not] enough to save a law which, on its face, discriminates based on content.\u201d Turner Broad. Sys., Inc., 512 U.S. at 642-43.\n{39} The basic purpose of that part of the CDM statute applicable here is to regulate the encouragement of a minor to commit an offense or engage in conduct injurious to the minor\u2019s health, morals, or welfare. Included in that basic purpose, of course, is the intent to protect minors. See Barr, 1999-NMCA-081, \u00b6 17; see also Ebert, 2011-NMCA-098, \u00b6 12 (stating that \u201cit is beyond question that the State has a compelling interest in protecting children from sexual predators and sexual exploitation\u201d); Brown, 131 S. Ct. at 2736 (\u201cNo doubt a [s]tate possesses legitimate power to protect children from harm[.]\u201d). Still, \u201c[mjinors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them.\u201d Brown, 131 S. Ct. at 2735 (internal quotation marks and citation omitted).\n{40} The CDM statute can unquestionably regulate speech when it criminalizes encouragement of conduct. The speech it regulates includes protected speech. That speech is protected which does not fall within the categories of unprotected speech such as obscenity, child pornography, defamation, fraud, incitement, fighting words and speech integral to criminal conduct. See id. at 2733 (setting out limited areas of unprotected speech); United States v. Stevens, 599 U.S. 460, _, _, 130 S. Ct. 1577, 1584, 1586 (2010) (same).\n{41} While the CDM statute does not specifically and expressly regulate encouragement of minors to engage in sexual offenses or unacceptable sexual activities, in the balance, I view the CDM statute as content-based insofar as it specifically criminalizes the encouragement of minors to act in a way that is injurious to their morals. To proscribe encouragement to engage in conduct considered immoral under community standards is tantamount to proscribing encouragement to engage in immoral sexual conduct. The proscription obviously includes engaging in sexual activity considered impermissible or intolerable under \u201cthe morality which most people entertain\u201d in a community. Trevino, 116 N.M. at 531, 865 P.2d at 1175 (describing the community standard as \u201c[t]he common sense of the community, as well as the sense of decency, the propriety, and the morality which most people entertain\u201d (internal quotation marks and citation omitted)); Fawcett, 114 N.M. at 546, 843 P.2d at 848 (\u201cWe believe [Article II, Section 17 of] our constitution requires that, although the community might not find the materials \u2018acceptable,\u2019 it must find them \u2018intolerable\u2019 before they may be deemed as an \u2018abuse\u2019 of the right to freely speak, write, and publish sentiments on all subjects.\u201d). Thus, as it applies to the facts of this case, I would label the CDM statute as content-based, requiring strict scrutiny. See City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 434, 455 (2002) (stating that content-based regulation of speech must pass strict scrutiny); City of Albuquerque v. Pangaea Cinema LLC, 2012-NMCA-075, \u00b6 29, 284 P.3d 1090 (same), cert. granted, 2012-NMCERT-007, 295 P.3d 600.\n{42} Under strict scrutiny, a regulation is invalid \u201cunless it is justified by a compelling government interest and is narrowly drawn to serve that interest.\u201d Brown, 131 S. Ct. at 2738; see also Pangaea Cinema, 2012-NMCA-075, \u00b6 29 (stating that under strict scrutiny, the government must \u201cshow that it has a compelling interest in the challenged scheme and that it has accomplished its goals by employing the least restrictive means\u201d). The CDM statute as applied to the facts in this case passes strict scrutiny muster. I do not doubt that New Mexico has a compelling interest in protecting minors from harm when adults encourage minors to engage in injurious, immoral, intolerable sexual conduct. Cf. Ferber, 458 U.S. at 756-57 (stating that \u201cthe [sjtates are entitled to greater leeway in the regulation of pornographic depictions of children},]\u201d that \u201c}t]he prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance},]\u201d and that \u201c}i]t is evident beyond the need for elaboration that a [sjtate\u2019s interest in safeguarding the physical and psychological well-being of a minor is compelling\u201d (internal quotation marks and citation omitted)); Butt, 2012 UT 34, \u00b6 35 (\u201cBecause of the [sjtate\u2019s exigent interest in preventing distribution to children of objectionable material, it can exercise its power to protect the health, safety, welfare},] and morals of its community by barring the distribution to children of books recognized to be suitable for adults.\u201d (internal quotation marks and citation omitted)).\n{43} Nor do I doubt that the CDM statute need not have greater restrictive tailoring than exists in regard to that protection when it comes to adult encouragement of minors to engage in immoral, injurious, intolerable, sexual conduct. See Alameda Books, 535 U.S. at 455 (\u201cA restriction based on content survives only on a showing of necessity to serve a legitimate and compelling governmental interest, combined with least restrictive narrow tailoring to serve it}.]\u201d); Ebert, 2011-NMCA-098, \u00b6 14 (holding a statute proscribing unlawful solicitation of children to be narrowly tailored, under strict scrutiny, to a compelling interest of protecting children from online sexual predators).\nJONATHAN B. SUTIN, Judge\nBy \u201cencourage\u201d or \u201cencouragement\u201d in this Concurring Opinion, I mean to include both \u201ctend to encourage\u201d and \u201cencourage.\u201d", "type": "concurrence", "author": "SUTIN, Judge" } ], "attorneys": [ "Gary K. King, Attorney General Olga Serafimova, Assistant Attorney General Santa Fe, NM for Appellee", "Jacqueline L. Cooper, Chief Public Defender J.K. Theodosia Johnson, Assistant Appellate Defender Santa Fe, NM for Appellant" ], "corrections": "", "head_matter": "Certiorari Granted, December 6, 2012,\nNo. 33,895\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2013-NMCA-005\nFiling Date: October 4, 2012\nDocket No. 31,470\nSTATE OF NEW MEXICO, Plaintiff-Appellee, v. JOE T. GARCIA, Defendant-Appellant.\nGary K. King, Attorney General Olga Serafimova, Assistant Attorney General Santa Fe, NM for Appellee\nJacqueline L. Cooper, Chief Public Defender J.K. Theodosia Johnson, Assistant Appellate Defender Santa Fe, NM for Appellant" }, "file_name": "0170-01", "first_page_order": 186, "last_page_order": 199 }